A Presidents Day Copyright Story: George Washington And The “First” Fair Use Case

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

GW1George Washington is responsible for a lot of “firsts.” For example, he was the first President, the first Commander-in-Chief of the Continental Army and the first guy to have the George Washington bridge named after him. But President Washington was also indirectly responsible for what is widely regarded as the first American application of the copyright doctrine of fair use.

Jared Sparks, Charles Upham and the Washington Letters

When Washington died in 1799, he left his voluminous correspondence to his nephew, Supreme Court Justice Bushrod Washington. The rights to these documents were subsequently acquired by Harvard University historian Jared Sparks. From 1834 to 1838, Sparks published The Writings of President Washington, a twelve-volume work of nearly seven thousand pages, the vast majority of which were Washington’s letters. Many of the letters were privaJared Sparkste and had not been published before. The series was printed in Cambridge, Massachusetts by Harvard’s former librarian and official printer, Charles Folsom.In 1840, Boston publisher Bela Marsh announced a new two-volume Life of Washington by the Reverend Charles Wentworth Upham. Upham was another Harvard historian who had graduated about ten years after Sparks and traveled in the same circles. In fact, Sparks had served as editor, and Folsom as printer, for Upham’s 1835 Life of Sir Henry Vane.

However, Sparks and Folsom were less than thrilled about the release of their former colleague’s newest biography. Although Life of Washington contained original scholarship by

Upham, it also includCharles Wentworth Uphamed hundreds of Washington’s private letters, copied directly and in their entirety from Sparks. Folsom brought suit against Marsh and Upham for “piracy of the copyright” in Washington’s private letters.

The American Birth of Fair Use

The case of Folsom v. Marsh was heard in 1841 by Supreme Court Justice Joseph Story, sitting as Circuit Court judge for the District of Massachusetts. After sweeping aside Marsh’s challenges to the validity of the copyright, Justice Story turned to what he saw as “the real hinge of the whole controversy,” whether the copying was “fair abridgement” under the English common law. Pursuant to this doctrine, an author had the “right to abridge and select” parts of another work if what was taken, qualitatively or quantitatively, was necessary for a justified purpose (in this case historical scholarship) and did not supersede the original. Justice Story held that this fact-specJustice Joseph Storyific inquiry depended on “the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale . . . of the original work.” Taking these factors into account, Justice Story reluctantly affirmed the lower court and held that defendants’ copying of so many private letters in their entirety was not  “fair and bona fide abridgment,” but copyright piracy.

Despite the outcome, it’s hard not to see in this opinion the seeds of the modern doctrine of fair use. Justice Story even presaged transformative use, noting that fair abridgment was more likely when the defendant creates an “original and new work” from the copied materials. Over 150 years later, in Campbell v. Acuff-Rose Music, Justice Souter credited Justice Story with the formulation of what became the fair use defense codified at 17 U.S.C. § 107.

Some Ironic Postscripts

In 1841, the same year Folsom v. Marsh was decided, Charles Upham celebrated the birth of his baby nephew. That baby, Oliver Wendell Holmes, Jr., would eventually eclipse Justice Story as the most famous jurist in the history of the Commonwealth. As for Upham himself, he turned to electoral politics, serving as Mayor of Salem, President of the Massachusetts Senate and member of the United States House of Representatives. Senator Charles Sumner once referred to Upham as “that smooth, smiling, oily man of God,” in part due to the politically-motivated firing of an obscure customs officer named Nathaniel Hawthorne.

Bela Marsh became known as the publisher of abolitionist Lysander Spooner. Although Marsh’s attorney argued vigorously before Justice Story for reasonable limitations on an author’s copyright, in 1855 Marsh published Spooner’s Law of Intellectual Property, which strongly recommended perpetual and unlimited copyrights and patents.

In 1851, two years after Jared Sparks became President of Harvard, a New York Evening Post investigative story charged Sparks with having “materially altered, suppressed and, in some instances, added to the original text” of Washington’s letters. Later that year, British historian Lord Mahon made similar allegations, sparking an intercontinental snail-mail flame war. It is worth considering that, if at least some of the letters had been acknowledged or revealed as fictional when published, and therefore not of value to historical scholarship, Justice Story may never have reached the issue of “fair abridgement,” thus robbing President Washington of at least one of his “firsts,” and perhaps materially altering the historical development of the fair use doctrine.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.